Towards Responsiveness: Consumer and Citizen Engagement in Co-Regulatory Rule-Making in the Australian Communications Sector

Date01 June 2021
DOI10.1177/0067205X21993148
Published date01 June 2021
AuthorDerek Wilding,Karen Lee
Subject MatterArticles
Article
Towards Responsiveness:
Consumer and Citizen
Engagement in Co-Regulatory
Rule-Making in the Australian
Communications Sector
Karen Lee*,
y
and Derek Wilding**,
y
Abstract
This article begins the process of evaluating the adequacy of the procedural and substantive
requirements that Australian communications regulators (and hence industry bodies) must
satisfy before co-regulatory codes of practice can be registered. It considers if the procedural
requirements relating to consumer and public consultation, included in the statutory frame-
works that authorise and govern co-regulation in the media, online and telecommunications
sectors, ensure co-regulatory rule-making is sufficiently responsive to the interests of con-
sumers and citizens. Drawing on publicly available information about seven industry bodies
that have drafted codes of practice and round table discussions with industry, consumers and
regulators, the article highlights that the current engagement practices of industry bodies
often fall short of the ‘democratic credentials’ of responsiveness. It suggests that the code
registration criteria relating to consumer and public consultation must be overhauled if these
weaknesses are to be rectified.
* Dr Karen Lee is a Senior Lecturer in the Faculty of Law at the University of Technology Sydney (UTS). The author may be
contacted at Karen.Lee@uts.edu.au.
** Dr Derek Wilding is Co-Director of the Centre for Media Transition at UTS. The author may be contacted at Derek.
Wilding@uts.edu.au.
y
Our research was made possible by funding received from the Australian Communications Consumer Action Network
(ACCAN), the Faculty of Law, UTS and the School of Law, University of New England, where Dr Lee was previously
employed. Funding received from ACCAN is made possible by funding provided by the Commonwealth of Australia under
section 593 of the Telecommunications Act 1997 (Cth). This funding is recovered from charges on telecommunications
carriers. The views expressed in this article do not necessarily repr esent the views of ACCAN. Our research was
approved by the UTS Human Resear ch Ethics Committee (ETH 17-18 30). We wish to thank the two anony mous
referees for their helpful comments on an earlier draft of this article.
Federal Law Review
2021, Vol. 49(2) 272–302
ªThe Author(s) 2021
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DOI: 10.1177/0067205X21993148
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I Introduction
Over the last three decades, co-regulation—‘when [an] industry develops its own code or accred-
itation scheme and this has legislative backing’
1
—has become an important component of the
framework used to regulate the Australian communications sector. Since as early as 1992, ‘bodies
and associations’ representing traditional br oadcasters—providers of free-to-air telev ision and
radio services and subscript ion broadcasting services
2
—have had the right to draft codes fo r
registration by the Australian Communications and Media Authority (ACMA) and its predeces-
sors. Bodies and associations representing ‘sections of the telecommunications industry’ acquired
the right in 1997.
3
Bodies and associations representing ‘[t]he internet service provider section of
the internet industry’ obtained the right in 1999
4
and 2001;
5
and ‘sections of the content industry’
in 2007.
6
All are expected, and in some cases may be requested,
7
to formulate codes and seek their
registration with ACMA or the eSafety Commissioner, who are obliged to register any codes they
submit for registration provided they meet specified statutory criteria. If industry bodies and
associations (industry bodies) do not develop codes, or registered codes developed by them ‘fail’,
then ACMA or the eSafety Commissioner may, in specified circumstances, adopt an industry
standard.
8
Since being given the responsibility to draft codes, industry bodies have drafted numer-
ous codes dealing with a variety of matters such as content and programming standards, billing,
complaint handling and debt collection, the best known of which are the Commercial Television
Industry Code of Practice and the Telecommunications Consumer Protections Code (TCP Code).
9
The former imposes obligations relating to matters such as accuracy in news, classification of
programs and restrictions on advertising; the latter imposes obligations, among others, relating to
advertising, sales, contracts and credit management.
1. This definition, which reflects widespread understanding of the term within the communications industry in Australia,
was adopted in Department of Communications, Regulating Harms in the Australian Communications Sector:
Observations on Current Arrangements (Policy Backgr ound Paper No 2, May 2014) 10 (‘Regulating Harms’). In
this article, we differentiate co-regulation, as defined above, from self-regulation (meaning voluntary rules developed
by industry without legislative backing or regulator enforcement) and direct regulation (meaning legislation and rules
developed under legislation by government or regulators). Our approach is largely consistent with how the terms are
used in the 2014 Policy Background Paper (see pp 6 and 15), except that we use ‘direct regulation’ in place of ‘black
letter law’.
2. See Broadcasting Services Act 1992 (Cth) (‘BSA’) pt 9. Although the BSA in 1992 anticipated codes for subscription
television broadcasting services (pay TV), these services did not commence until 1995.
3. See Telecommunications Act 1997 (Cth) (‘TA’)pt6.
4. See BSA (n 2) sch 5 pt 5 (introduced by the Broadcasting Services Amendment (Online Services) Act 1999 (Cth)). Codes
must deal with matters such as procedures to ensure children do not access online accounts without the consent of
parents or responsible adults.
5. Part 4 of the Interactive Gambling Act 2001 (Cth) (‘IGA’) refers to ‘a body or association’ that ‘represents internet
service providers’.
6. See BSA (n 2) sch 7 pt 4 (introduced by the Communications Legislation Amendment (Content Services) Act 2007 (Cth)).
‘Sections of the conten t industry’ include host ing service providers, l ive content service prov iders, links service
providers and commercial content service providers; in all cases, the services must have an Australian connection.
7. See, eg, TA (n 3) s 118; BSA (n 2) sch 5 pt 5 cl 63; IGA (n 5) s 39; BSA (n 2) sch 7 pt 4 cl 86.
8. BSA (n 2) s 125; TA (n 3) ss 123, 125; BSA (n 2) sch 5 pt 5 cls 68, 70; IGA (n 5) ss 44, 46; BSA (n 2) sch 7 pt 4 cls 91, 93.
With the exception of Part 9 of the BSA, comparable powers to develop industry standards exist in the other four
frameworks if there are no bodies or associations representing industry interests.
9. See Free TV Au stralia, Commercial Televisio n Industry Code of Practice (2015) ; Communications Alliance Ltd,
Industry Code C628: Telecommunications Consumer Protections Code (2019).
Lee and Wilding 273

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